Full Text
HIGH COURT OF DELHI
Date of Decision: 19th May, 2023
NARESH KUMAR SABHERWAL ..... APPELLANT
Through: Mr. Pramod Kumar Ahuja and Mr. Sumit Sahni, Advs.
Through:
HON'BLE MR. JUSTICE AMIT MAHAJAN VIBHU BAKHRU, J. (Oral)
JUDGMENT
1. For the reasons stated in the application, the same is allowed and the delay in filing the present appeal is condoned.
2. The application stands disposed of. CM APPL. 26828/2023 (exemption from filing the certified copies of impugned judgment as well as of annexures as well as typed, dim and less margin copies)
3. Exemption allowed, subject to all just exceptions.
4. The application stands disposed of. RFA(COMM) 98/2023 & CM APPL. 26830/2023
5. The appellant has filed the present appeal impugning judgment and decree dated 22.12.2022 passed by the learned Commercial Court in CS (COMM) No. 531/2019 (‘the impugned judgment’).
6. The appellant had filed the aforementioned suit, inter alia, praying for a decree of ₹9,20,514/- (Rupees Nine Lakhs Twenty Thousand Five Hundred and Fourteen Only) along with interest at the rate of 18% per annum.
7. The appellant’s (plaintiff’s) cause of action rested on failure on the part of the respondents to pay rent in terms of the Lease Deed dated 18.09.2013 ( hereafter ‘the Lease Deed’) in respect of Shop NO. 44, Old Rajinder Nagar Market, New Delhi (hereafter ‘the said property’).
8. The appellant had leased the said property in terms of the Lease Deed to the respondents. The term of the lease was for the period of two years commencing from 01.09.2013. According to the appellant, the tenancy came to an end on 30.08.2015 by flux of time, however, the lease was verbally renewed from time to time.
9. The appellant claimed that in terms of the Lease Deed, rent was required to be increased by 10% for each subsequent year, and therefore, he is also entitled to the said increase over and above the rent as mentioned in the Lease Deed.
10. According to the appellant, the respondent was liable to pay rent at the rate of ₹30,800/- per month for the period 01.09.2014 to 30.08.2015 and at the rate of ₹33,880/- per month for the period 01.09.2015 to 31.08.2016. He claimed that the rent was also required to be enhanced for the subsequent periods on similar basis.
11. The appellant claimed that on failure of the respondents to pay the enhanced rent, an amount of ₹3,96,067.84/- was due and payable. However, this did not conform to the demand raised by the appellant in its legal notice, which the appellant claimed was erroneous.
12. The appellant also claimed mesne profits at rate of ₹80,000/per month for the period commencing from June, 2019.
13. The respondents filed the written statement, however, the same was struck off.
14. The learned Commercial Court proceeded to examine the admitted facts. It noted that there was no dispute that the possession of the property was taken over by the plaintiff on 17.01.2021. The court also noted that the respondents had offered possession of the said property on 03.06.2020.
15. The learned Commercial Court found that appellant had failed to lead any evidence or place any material on record to establish the rental value of the properties in the vicinity. Accordingly, the court held that the appellant was not entitled to the mesne profits / damages at the rate of ₹80,000/-, as claimed. However, the learned Commercial Court quantified the amount payable to the appellant on the basis of the last rent paid by the respondent for the period 01.06.2019 to 03.06.2020 (the date on which possession was offered to the appellant).
16. The dispositive paragraph of the impugned judgment is set out below:
17. The learned counsel appearing for the appellant has confined the challenge to the impugned judgment to the extent that the learned Commercial Court has adjusted the security deposit of ₹84,000/- from the amount payable to the appellant, as determined by the Court.
18. He submits that since the written statement filed by the respondents had been removed from the record, therefore, no adjustment could be made in their favour. He submits since there was no counter claim by the respondents for refund of security deposit of ₹84,000/-, the same could not have been adjusted from the amount as computed by the learned Commercial Court.
19. We find no merit in the aforesaid contention.
20. Paragraph 6 of the plaint filed by the appellant referred to the Lease Deed dated 18.09.2013 and had sought to incorporate the terms thereof as a part of the plaint. Paragraph 6 of the plaint is set out below:
21. In view of the aforesaid pleading, the appellant has set up the Lease Deed as an integral part of its case. Paragraph 3 of the Lease Deed – which by virtue of Paragraph 6 of the plaint is incorporated as a part of the plaint – reads as under:
22. It is clear from the above that in terms of Paragraph 3 of the Lease Deed, the amount of interest free security deposit amounting to ₹84,000/- was refundable by the appellant to the respondents. Since the aforesaid term of the Lease Deed is a part of the plaint, we find no infirmity in the decision of the learned Commercial Court to consider the same. The fact that the security deposit is refundable, must be accepted as one of the facts as admitted in the plaint.
23. Thus, the decision of the learned Commercial Court to adjust the security deposit amount from the amount as payable to the appellant, cannot be faulted.
24. The appeal is unmerited and, accordingly, dismissed.
25. Pending application is also disposed of.
VIBHU BAKHRU, J AMIT MAHAJAN, J MAY 19, 2023 ‘KDK’